Can a jury commit misconduct if they discuss a defendant's failure to testify during their deliberations?

California, United States of America


The following excerpt is from People v. Johnson, F067359 (Cal. App. 2015):

Jurors commit misconduct if they violate a trial court's instructions not to discuss a defendant's failure to testify. (People v. Loker (2008) 44 Cal.4th 691, 749; People v. Lavender (2014) 60 Cal.4th 679, 686-687.) In this case, the court gave the jury standard instructions that if a defendant does not testify, "you must neither discuss this matter nor permit it to enter your deliberations in any way." If, during deliberations, one or more jurors does mention a defendant's failure to testify, a rebuttable presumption of prejudice arises. (Lavender, supra, at p. 687.)

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